Domestic Workers Convention, 2011 (No. 189) - Mauritius (Ratification: 2012)

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 3(2)(a) of the Convention. Freedom of association and collective bargaining. The Government reports that the Special Migrant Workers Unit of the Ministry of Labour, Industrial Relations and Employment (MLIRET) was revamped in February 2018 and renamed the Special Migrant Workers Unit/Flying Squad (SMWU). To ensure that migrant workers are able to effectively exercise the right to establish and join organizations of their own choosing, SMWU officers, during the course of their inspection visits, inform and sensitize migrant workers concerning these fundamental rights. The Government adds that workers’ education sessions are also broadcast on public and private radio for this purpose. The Committee requests the Government to indicate the measures taken to ensure that all domestic workers – including regular and irregular migrant domestic workers – are able to effectively exercise the right to establish and join organizations of their own choosing, as required under Article 3(2)(a) of the Convention. It also reiterates its request that the Government provide information on the manner in which adequate representation of domestic workers – including migrant domestic workers – in social dialogue is being ensured, taking account of the specific characteristics of domestic work.

Article 3(2)(d). Elimination of discrimination in respect of employment and occupation. In its 2015 comments, the Committee referred to its 2014 comments on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), noting that, pursuant to section 13(5)(c) and (e) of the Equal Opportunities Act (the “EOA”), domestic workers are excluded from protection against discrimination with respect to access to employment. The Committee also recalls its 2017 comments on Convention No. 111, in which it requested the Government to indicate the manner in which section 13(5)(c) and (e) of the EOA is applied in practice, as well as to provide information on any judicial decisions interpreting these provisions, or any advice, decisions or recommendations made by the Equal Opportunity Commission (EOC) in this regard. The Committee further requested the Government to take the necessary measures to ensure that domestic workers, who are particularly vulnerable to discrimination, enjoy the same protections against discrimination as all other workers. The Government reports that this issue is currently under consideration by the EOC. It also points out the existence of a complaints mechanism at the level of the MLIRET, to which all workers, including domestic workers, can submit grievances arising out of the employment relationship, including grievances on the grounds of discrimination under section 4 of the Employment Rights Act (ERiA). The Committee notes the Government’s indication that no discrimination complaints have been brought against a prospective employer during the period under review. The Committee refers the Government to its 2015 comments and to its 2014 and 2017 comments made under Convention No. 111, and requests the Government to provide information on the measures taken or envisaged to ensure that domestic workers, including migrant domestic workers, effectively enjoy the right to be free from discrimination in employment and occupation. In particular, the Committee requests the Government to provide information on the outcome of the review of section 13(5) (c) and (e) of the Equal Opportunities Act, including copies of any amendments adopted.

Article 7. Terms and conditions of employment. The Committee previously noted that the model contract provided by the Government in the Second Schedule of Government Notice No. 159 of 2013, enacted under the ERiA, does not contain provisions on paid annual leave, daily and weekly rest periods, provision of food and accommodation, probationary or trial periods, nor terms and conditions relating to the termination of employment, including any period of notice. It therefore requested the Government to indicate the measures taken to ensure that domestic workers are informed of their terms and conditions of employment in accordance with Article 7 of the Convention. The Government reports that this matter is under consideration in the context of the current labour law review. It adds that the particulars listed under Article 7 of the Convention are, however, specifically provided for in the model contract of employment for migrant workers mediated from abroad to work as domestic workers, attached to the Government’s report. The Committee requests the Government to continue to provide information on the measures taken to ensure that all domestic workers, whether nationals or non-nationals, are informed of their terms and conditions of employment, notably of the particulars listed in Article 7 of the Convention.

Article 8(1)–(3). Migrant workers. The Government indicates that the Employment Division of the MLIRET facilitated the recruitment of domestic workers to the Gulf Countries during the 1980s, but that since that time, no formal requests have been received in this respect from the Gulf countries or other countries. The Committee requests the Government to indicate the manner in which effect is given to Article 8 of the Convention. It once again requests the Government to provide further information on the manner and extent to which Mauritian domestic workers recruited to work abroad are protected under existing bilateral agreements as contemplated under Article 8 of the Convention.

Article 9(c). Possession of travel and identity documents. The Government reports that, under section 12 of the Combating of Trafficking in Persons Act 2009, possessing or concealing the travel or identity documents of a victim of trafficking constitutes an offence. Thus, an aggrieved worker may register a complaint at any police station. A person found to have committed such an offence shall on conviction, be liable to imprisonment for a term not exceeding five years and to a fine not exceeding 100,000 Mauritian rupees (MUS). The Committee notes, however, that this provision addresses victims of trafficking and does not establish the right of a domestic worker to keep travel and identification documents in his or her possession. The Committee reiterates its request that the Government provide detailed information on the manner in which effect is given to this provision of the Convention to ensure that domestic workers effectively enjoy the right to keep their travel and identification documents in their possession.

Article 10(3). Equal treatment between domestic workers and other workers. Normal hours of work. The Government indicates that there is no express provision in the national legislation addressing “on call” or “standby time”, that is, periods during which domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls. It adds that, while the issue of standby hours (also referred to as “on-call” hours) is not addressed in national legislation, the Domestic Workers Remuneration Regulations 2010, Paragraphs (1), (2), (5) and (12) make adequate provision for remuneration to be paid to domestic workers during normal working hours, extra work or work on public holidays, as well as allowances for work performed outside the usual place of work. The Committee recalls that Article 10(3) of the Convention as well as Paragraph 9 of Recommendation No. 201 specify that standby or on-call hours are to be considered as hours of work to the extent determined by national laws, regulations, collective agreements, or practice. Noting the Government’s indication that the issue of standby hours is being addressed in the labour law revision, the Committee requests the Government to provide information on the outcome of the revision in relation to implementation of Article 10(3) of the Convention, also taking into consideration the guidance provided in Paragraph 9 of the Domestic Workers Recommendation, 2011 (No. 201).

Article 15(2). Consultations with the social partners concerned. The Government’s report does not indicate whether the most representative organizations of employers and workers and, if they exist, organizations representative of domestic workers and those representative of employers of domestic workers, have been consulted in giving effect to the provisions of Article 15 of the Convention. The Committee therefore reiterates its request that the Government provide specific information in this regard.

Article 17(2) and (3). Complaint mechanisms. Inspection. The Government reports that, to date, no inspections have been carried out by the MLIRET in respect of domestic workers. The Government indicates that, while no inspections have been carried out in private premises where domestic workers perform their work, as access to such premises requires the consent of the employer, domestic workers still have recourse to the complaints mechanism pursuant to section 4 of the ERiA. The Committee notes that, from 1 June 2014 to 30 April 2018, a total of 2,425 complaints (2,422 local workers and 3 migrants) were received from domestic workers, representing 3.7 per cent of total complaints received. The Committee recalls that, by virtue of Article 17(2) of the Convention, each Member shall develop and implement, inter alia, measures for labour inspection, having due regard for the special characteristics of domestic work. In accordance with Article 17(3) and insofar as compatible with national laws and regulations, such measures shall specify the conditions under which access to household premises may be granted for purposes of inspection, having due respect for privacy. The Committee also draws the attention of the Government to Paragraph 19(b) of Recommendation No. 201, which provides that Members, in consultation with the most representative organizations of employers and workers and, where they exist, with organizations representative of domestic workers and those representative of employers of domestic workers, should take measures to provide an adequate and appropriate system of inspection and adequate penalties for violations of occupational safety and health laws and regulations. The Committee requests the Government to provide detailed information on the actions taken or envisaged to develop and implement measures for labour inspection, enforcement and penalties for the protection of domestic workers, having due respect for privacy as well as regard for the special characteristics of domestic work. The Committee requests the Government to provide detailed information on the measures adopted or envisaged ensure the effective protection of domestic workers, particularly migrant domestic workers, such as establishing a national hotline for domestic workers and providing information to domestic workers of their rights, relevant laws and regulations, available complaint mechanisms and legal remedies, in a format or language understood by them, as contemplated by paragraph 21(1)(a)–(f) of Recommendation No. 201.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Article 3(2)(a) of the Convention. Freedom of association and collective bargaining. The Committee notes the detailed information contained in the Government’s first report on the application of the Convention. The Government indicates that article 13(1) of the Constitution of Mauritius guarantees that no person shall be hindered in the enjoyment of his/her freedom of assembly and association, his/her right to assemble freely and associate with other persons and, in particular, to form or belong to, trade unions or other associations for the protection of his/her interests. In this respect the Government refers to section 29 of the Employment Relations Act 2008 (EReA) (Act No. 32) which stipulates, inter alia, that every worker shall have the right to be a member of a trade union; to take part, outside working hours or with the consent of the employer within working hours, in the lawful activities of a trade union of which he/she is a member; and to seek, subject to the rules of the trade union of which he/she is a member, appointment or election as an officer of that trade union. The Committee refers to its observation of 2015 on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it requested the Government to provide information on measures taken or envisaged to ensure that migrant workers may effectively exercise in practice the right to establish and join organizations of their own choosing. In this context, the Committee requests the Government to provide specific information on how adequate representation of domestic workers in social dialogue is being ensured.

Article 3(2)(d). Elimination of discrimination in respect of employment and occupation. The Committee notes the Government’s indication that protection of workers, including domestic workers, against discrimination, apart from being enshrined in section 16 of the Constitution, is specifically provided for in sections 4 and 29 of the Employment Rights Act 2008 (ERiA), and the EReA respectively. The Committee, however, refers to its 2014 comments on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in which it noted that, pursuant to section 13(5)(c) of the Equal Opportunities Act (EOA), workers providing domestic or personal services in or in relation to a person’s home are excluded from the protection of discrimination in respect to access to employment. The Committee requests the Government to refer to its comments made under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and trusts that the Government will provide the necessary measures in this context.

Article 7. Terms and conditions of employment. The Committee notes the model of a written contract submitted by the Government. (Second Schedule of the Government Notice No. 159 of 2013 enacted under the Employment Rights Act). However, it notes that there are no provisions in this model contract on paid annual leave, daily and weekly rest periods, provision of food and accommodation, period of probation or trial periods, nor terms and conditions relating to the termination of employment, including any period of notice. The Committee requests the Government to provide information on the measures taken to ensure that domestic workers are informed of their terms and conditions of employment and in particular of the terms listed under Article 7 of the Convention.

Article 8(1)–(3). Migrant workers. The Committee notes the Government’s indication that all migrant workers enjoy the same terms and conditions of employment as those laid down for local workers under national legislation. The contract of employment of a migrant worker, prior to arrival in Mauritius, is examined and vetted by the Special Migrant Workers’ Unit (SMWU) of the Ministry of Labour, Industrial Relations and Employment to ensure that it contains no abusive clauses and that it is in full conformity with the prevailing labour legislation. The Committee notes the Government’s information on the bilateral agreement signed on 24 January 2005 with China as well as other bilateral agreements with other countries, on labour service cooperation with a view to strengthening the economic and trade cooperation between countries of origin of migrant workers as well as with countries of destination of Mauritian migrant workers ensuring that the rights of these workers are protected. In this regard, the Committee requests the Government to provide further information on the extent to which Mauritian domestic workers going abroad are protected under such agreements, for instance, by providing them with a written job offer or contract of employment that is enforceable in the country in which the work is to be performed, addressing the terms and conditions of employment referred to in Article 7, prior to crossing national borders. It also asks the Government to provide a copy of these bilateral agreements.

Article 9(c). Keeping possession of travel and identity documents. The Committee notes that the Government provides no information on this point. The Committee therefore requests the Government to provide information on how effect is given to this provision of the Convention.

Article 10(3). Equal treatment between domestic workers and workers generally on working time. Stand by. The Committee notes that the applicable legislation does not appear to include provisions on stand by and the Government provides no information on this point. While recalling that when domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls shall be regarded as hours of work, the Committee requests the Government to provide information on the regulation of stand by pursuant to Article 10(3) of the Convention, and taking into consideration Paragraph 9 of the Domestic Workers Recommendation, 2011 (No. 201).

Article 15(2). Consultation with social partners concerned. The Committee notes that the Government’s report is silent on whether the most representative organizations of employers and workers and, if they exist, organizations representative of domestic workers and those representative of employers of domestic workers have been consulted in giving effect to the provisions of Article 15 of the Convention. The Committee requests the Government to provide information in this regard.

Article 17(2) and (3). Complaint mechanisms. Inspection. The Committee notes the Government’s indication that labour and occupational safety and health inspection at workplaces of domestic workers may be hindered by the fact that such workplaces are private premises, access to which requires the consent of the employer, as guaranteed in the Constitution. Under the Occupational Safety and Health (Employees’ Lodging Accommodation) Regulation 2011, the Permanent Secretary of the Ministry of Labour, Industrial Relations and Employment has the power to enter premises used solely for residential purposes to conduct such inspections, examination and investigation as may be necessary with the permission of the occupier. It also notes that under sections 61 and 62 of the ERiA 2008, the Permanent Secretary has the power to enter, for labour inspection, premises used solely for residential purposes with the permission of the occupier. However, in the absence of the employer’s consent to grant access to his/her premises for the purpose of inspection or investigation with a view to ascertaining compliance with the law, the Permanent Secretary has the power under the ERiA 2008 to require the employer to produce records and other documents relating to the terms and conditions of employment; or to request the employer to submit in writing information pertaining to wages, terms and conditions of employment, and particulars of employment of the worker; or to summon the employer where a breach of the law is suspected or enquiry into a reported dispute is necessary. The Committee requests the Government to provide information on practical inspection conducted in private premises where domestic workers undertake their work.